Third
Delegated Legislation
Committee

Monday 3
November
2008

[Mr.
Christopher Chope in the
Chair]

The
Parliamentary Under-Secretary of State for Children, Schools and
Families (Sarah McCarthy-Fry):I beg to
move,

That
the Committee has considered the draft Safeguarding Vulnerable Groups
Act 2006 (Prescribed Criteria) (Foreign Offences) Order
2008.

The
Chairman: With this it will be convenient to consider the
draft Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions)
Order
2008.

Sarah
McCarthy-Fry: May I say what a pleasure it is to serve
under your chairmanship, Mr. Chope, to debate my first
statutory instrument as a Minister? The orders that we shall debate
today arise from two different effects of the 2006 Act on the barring
of unsuitable persons from work with vulnerable groups. The Act
requires us to go through a transition from barring decisions taken
under current schemes by the Secretaries of State, as happens now, to
barring decisions under the new vetting and barring scheme, which is
due to go live in October 2009. Those decisions will be taken by the
new independent safeguarding authority or ISA, which the order refers
to as the independent barring
board.

Secondly,
the Act was passed in 2006 before our amendments to the current list 99
scheme in 2007, which expanded its coverage to foreign offences. I wish
to thank both the Joint Committee on Statutory Instruments and the
Merits Committee for carefully considering the ordersas hon.
Members know, neither Committee found anything on which to comment. The
Merits Committee said that the orders are of interest and published
brief supplementary information provided by my officials. I have
published an information note for members of the Committee to inform
the debate, and it explains in detail how we wish to make use of the
functions created by the foreign offences order in future proposed
regulations.

Michael
Fabricant (Lichfield) (Con): The Minister will be aware
that some people have talked about a possible human rights violation.
What assurance can she give the Committee that an attempt to delay the
order by judicial intervention under the Human Rights Act 1998 would
not
prevail?

Sarah
McCarthy-Fry: It is not exactly clear what the hon.
Gentleman is referring to. Does his point concern the implementation of
this particular order being delayed by some form of judicial
review?

Column number: 4

Michael
Fabricant: I do not necessarily agree with them, but some
people have said that, if the order were passed in Committee today, it
might be in breach of the Human Rights Act. To what extent has the
Ministers Department ensured that that is not the case and that
it would not delay the implementation of the statutory
instrument?

4.33
pm

Sitting
suspended for a Division in the
House.

4.45
pm

On
resuming

Sarah
McCarthy-Fry: I was answering a question asked by the hon.
Member for Lichfield. If he reads the explanatory memorandums, he will
see that Baroness Morgan of Drefelin has stated that, in her view, the
orders are compatible with the convention rights. The Department
provided specific information in a memorandum to the Merits Committee,
but I do not intend to read it out as it is two pages long. However, I
am happy to send it to the hon. Gentleman.

I will set out
the main reasons for the orders. We propose to handle the transition by
undertaking it in stages. The transitory provisions order will require
Ministers to stop taking barring decisions under current schemes on new
referrals and, instead, the ISA will be required to take those
decisions. Ministers will decide on the remaining existing referrals.
Bodies such as employers, who have a duty under current legislation to
make such a referralfor example, when they dismiss an employee
because there is a risk of harm to childrenwill generally have
to make new referrals directly to the ISA. The exception is that
referrals under list 99 legislation in Wales must still be made to
Welsh Ministers, who will pass them to the ISA.

We aim to
bring the transitory order into force by 19 January 2009,
and ISA decision making would start from that date. That is subject to
parliamentary approval of these orders and of any regulations
concerning which offences would lead to an automatic bar. We aim to lay
those regulations promptly, if Parliament approves the foreign offences
order.

The benefit of
starting ISA decision making before the vetting and barring scheme goes
live is that it will help us to manage the transition more smoothly.
The existing stock of barred cases decided by Ministers must be
referred to the ISA. The ISA will includeor consider
includingthose cases in its new barred lists under a
transitional provisions order made during the spring.

The effect of
switching decision making to the ISA from January 2009 will be to
reduce the number of cases that go through the lengthier process of
decision by the Secretary of State, followed by migration by the ISA on
to the new barred lists. Instead, there will be a more streamlined
approach for new cases and a decision straight away by the ISA. After
the new scheme has gone live, that new approach will minimise the
period in which current arrangements need to be preserved while the
Secretary of State completes the cases that are left for him to decide
on. The ISA will then migrate those cases to the new barred
lists.

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The foreign
offences order enables the 2006 Act to catch up with an improvement
made in 2007 to the list 99 regulations. That provided for
an automatic bar in the case of a person convicted of a specified
foreign offence. We want to have that power under the 2006 Act, so as
to increase protection for vulnerable groups and honour our commitment
that statutory safeguards under the Act are not fewer than those under
the current schemes, including list 99. The information note sets out
how we intend to use that power.

Finally, when
we debated the orders under the 2006 Act last spring, my hon. Friend
the Member for Cardiff, West (Kevin Brennan) wrote to the hon. Member
for Woking (Mr. Malins) about work under way to improve the
exchange of criminal record information between EU member states.
Details of that work are in the explanatory memorandum to the
order.

Nothing is
more crucial than safeguarding vulnerable groups from those who pose a
serious risk of harm. Although everyone has a responsibility, the
Government play a key part. We are determined to do everything that we
can to safeguard children and vulnerable adults, and I commend the
orders to the
Committee.

4.49
pm

Mrs.
Maria Miller (Basingstoke) (Con): It is a pleasure to
serve under your chairmanship, Mr. Chope, and I also welcome
the Minister to her new role. I have had the pleasure of attending
parliamentary questions with her, but this is the first time we have
served together in Committee, and I am sure that it will be
productive.

Orders such as
this to the Safeguarding Vulnerable Groups Act 2006 will hopefully make
a significant change to the way in which thousands of people are
assessed on their suitability to work with children. As we grapple with
some of those issues, we should not forget the events that necessitated
those changes. It is now two years since the Act was originally
introduced in the House, and reports and analyses were being done in
preparation for it four years before that. The years may pass by, but
we are still awaiting the scale of the change in the system of vetting
to reflect the events that caused their introduction.

I also remind
the Committee about its crucial role in relation to the 2006 Act. As
the hon. Member for Mid-Dorset and North Poole and I have emphasised
throughout, the lack of detail in the 2006 Act makes it highly
dependent on secondary legislation, which is why these delegated
legislation Committees are absolutely vital. We were disappointed that
the Government took the approach of introducing a hollow Act to be
filled with secondary legislation, which made it difficult to look at
the details when we discussed the 2006 Act in Committee.

It is also
striking that we are now on to our third Minister. When the Government
take a number of years for a piece of legislation to make its long
journey through the House, there is a lack of consistency in
ministerial responsibility. However, I am sure that the hon. Lady will
have been assiduous in her work prior to this Committee to make sure
that we can make the most of todays proceedings. I hope that
she is in her place for the remainder of the statutory instruments that
need to come into play before the system goes live in just under a
years time.

Column number: 6

I shall now
turn to the order and, specifically, look at overseas offences. Before
we discuss those important provisions, it is vital that we recognise
the role that overseas workers now play in the UK: they account for
more than one in 10 of the UK work force; they account for 18 per cent.
of the UK social work work force; and in the medical profession more
than one in four individuals is an overseas worker. They are therefore
crucial, which makes the order even more concerning than it might, at
first, appear.

The order
contains a series of amendments that play catch up as a result of
changes to list 99, as the Minister has said. To take a slightly
different view, that perhaps highlights the point that the 2006 Act
does not yet adequately deal with the issue of vetting overseas
workers. That is something that we spent a great deal of time talking
about in the Committee that considered the 2006 Act. Perhaps the
Minister will take the opportunity afforded by todays
discussions to come clean with the Committee and set the record
straight as to whether this particular order deals with an omission in
the 2006 Act, rather than just playing catch up. I should have thought
that if the order were about playing catch up, the amendments to list
99 would be taken as a matter of course within the content of the 2006
Act. Perhaps the Minister will inform the Committee about the details
on
that.

When
the Ministers predecessor was challenged in Committee on that
very issue, he
said:

Today,
we have been presented with an order that, on the face of it, takes the
intent behind amendment No. 194 that my hon. Friends and I introduced
in the Public Bill Committee. It places the need to take account of
offences committed overseas in the 2006 Act, which we have been calling
for since Second Reading in June
2006.

I
understand that the Minister is in a difficult position. Perhaps we
should be thanking her for ensuring that, at last, our concerns have
been heard. However, the Committee expects some sort of explanation
from the Minister on behalf of her two predecessors, who gave, for
whatever reason, assurances when considering the 2006 Act in Committee
and even on the Floor of the House that those matters had been
adequately dealt with. I am not sure whether todays order
substantiates those assurances.

Will the
Minister explain why the situation has changed, over and above the
changes in list 99? Why would the changes not be taken into account
automatically, because list 99 is already mentioned in the 2006 Act?
Why are amendments needed now, and what has changed to bring that
about? Have there been changes with regard to the information available
to vet overseas workers that make it necessary to place the provisions
in the 2006 Act, which was dismissed in Public Bill Committee as
unnecessary?

The
Criminal Records Bureau has approached European Union member states to
ask whether they are willing to share criminal conviction information.
I understand that EU legislation may be in place, but the reality is
that few countries are sharing data on sexual offences, even at an EU
level. How many countries have adopted the framework for the collection
of information on sexual offence convictions and are now actively
sharing

Column number: 7

such information? Is there concern about whether or not the information
will be forthcoming? Also, what progress has been made in dealing with
inconsistencies in how sexual offences are treated by different
European countries? I remind the Committee that in Sweden, in
particular, sexual offences are deleted from an individuals
record after 10 years, if there are no subsequent
convictions.

Michael
Fabricant: That is particularly pertinent, because I have
a constituent who had sex with a 14-year-old, although he was 15 at the
time and they were at school. I do not condone that sort of thing, but
his record as a sexual offender is now there for the rest of his life.
Overseas visitors, who might be in a similar situation, could find
themselves so branded, even though society might say that the
circumstances were different from, say, a 30-year-old having sex with a
14-year-old.

Mrs.
Miller: My hon. Friend has raised an important point,
which we discussed in Committee and on which a view will be taken when
it comes to barring in the long term. The issue here concerns overseas
workers, and few individuals appear to have had such offences
recognised in this country. I shall draw the Committees
attention to some details that I have found out about that in a
moment.

As
the Minister knows, the problem that I am highlighting is not abstract,
and it is an issue in other European Union member states. The Minister
will be aware of the 2004 Fourniret casean individual convicted
in France of sex offences against children, as well as murder, moved to
Belgium, where he gained employment in a school, only to commit a
further series of murders and sexual assaults against children. Neither
the Belgian authorities nor the school were aware of his previous
convictions. Will the Minister confirm the current procedures for
dealing with overseas convictions? What changes have been made since my
hon. Friend the Member for Havant (Mr. Willetts) first
raised the issue with the then Secretary of State almost three years
ago? That was well before the more recent revelations of January 2007
that 27,529 overseas convictions for UK nationals had not been entered
on to the British police national
computer.

We
need to be clear why the matter is so important. The new system will be
seen as a tighter form of vetting, and employers have already been told
that. However, one in 10 of the work forceperhaps more people
in areas such as care for the elderly and educationwill be
effectively unmonitored. There continues to be no process for easily
accessing information about convictions for sexual offences even inside
the EU, let alone in Africa and Asia. We know that there are a number
of individuals from those continents working in the UK, so why are the
Government continuing to bury their head in the sand on the issue? At
best, they are ignoring the problem, and at worst they are creating an
illusion for employers that the problem is being dealt
with.

Will
the Minister consider adopting a further proposal, which we put forward
in Committee, about flagging individuals who have worked overseas for a
prolonged period of time? They should be highlighted with a flag on the
monitoring system, so that, when employers come to employ an individual
who has worked overseas,

Column number: 8

that is fully brought to their attention. Perhaps under the auspices of
the IBB guidance can be identified on the procedures employers should
follow in such cases. It is really not acceptable for the Government to
continue to ignore this gaping hole in their new vetting system, which
will not go
away.

We
need to hear from the Minister about what will happen next. Her
predecessor promised us that there would be full regulations on how the
issues regarding overseas workers would be dealt with. We are
discussing a couple of amendments to bring the legislation up to
dateas she has put it, this is catch-up legislation. What
further regulations can we expect and when will they be forthcoming?
Time is ticking on this one.

Under the
second order, the IBB will take barring decisions rather than the
Secretary of State, and the decision-making process will be based on
the new legislation, but the consequences of barring will remain the
same as under existing legislation. That is a little difficult to grasp
for those of us who were fully involved in the 2006 Act, and it is
certainly quite complicated for employers and those affected to grasp.
Will the Minister tell us how those who are barred will be affected by
the proposed
changes?

Schedule
3 to the 2006 Act introduced the concept of risk of
harm, which the Government argue is clearer than the current
wording
of

unsuitable
to work with
children.

Is
that the only difference? When the IBB is fully launched, a far wider
range of jobs will be affected by the barring procedures. How will
those who are barred under the transitional arrangements be informed of
such changes? It might be prudent to ensure that individuals who are
barred under the transitional arrangements know the future implications
of their barring straight away, so that they can better plan their
route into employment. How should employers treat the change? Can they
decline to employ an individual, if the job will become a regulated
activity when the full IBB system goes live? I apologise for using IBB
rather than ISA, which was ingrained into me during the Committee stage
of the 2006 Act. How would that particular challenge be treated in
employment law? The Minister could take this opportunity to clarify
that for people who are following our proceedings in some detail. It is
complicated for all parties, and we need to know the implications of
what is being
proposed.

There
is an important role for communication in this process. I stressed that
point during the Committee stage of the 2006 Act, and it is
particularly relevant now because of the complexities of the transfer
to the new system. A good website and programme of communication has
been established jointly between the Ministers Department and
the IBB to inform consultative and regulatory groups. I know that
further work will be done in terms of direct media and road shows, but
there are already indications that communications are a challenge, and
there will be further challenges following the orders. That underlines
the need to ensure that consultative and regulatory groups are
cascading the information that people on the ground need to know if the
orders and the 2006 Act are to work as the Government hope that they
will. From my informal discussions with people who are involved in
governing bodies, there is a lack of clarity about the implications of
being on the monitored list, particularly in terms of payment. Even
within the

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useful guidelines on the IBB website, there are some contradictions
that, while they are slightly outside the scope of this Committee, the
Minister may want to comment
on.

I
would also like the Minister to consider the importance of good quality
information. Is she happy that the IBB will have access to all the
information that it needs to make barring decisions? In response to a
written question that I tabled in April this year, the Home Office
confirmed that there have been just 62 cases where an individual from
overseas has had their sexual offence recognised in a magistrates
court, yet there are 3.6 million overseas workers in the UK. If one
does the maths, one finds that there is either a very different
population coming into the UK to work, or that there has been an
under-reporting of convictions for sexual offences committed by people
who are coming to work in this country. The Committee and, indeed, the
House, would find it useful to know whether the Minister is satisfied
with the present situation regarding how sexual offences by overseas
workers are recognised in this country, and whether she feels that the
current situation is a true reflection of reality. She must take time
to respond on those important issues, and I look forward to hearing her
thoughts.

5.5
pm

Annette
Brooke (Mid-Dorset and North Poole) (LD): It is a pleasure
to serve under your chairmanship this afternoon, Mr. Chope.
I, too, welcome the Minister to this forum, although we have already
had some exchanges on the Floor of the
House.

I
should like to begin with a basic point. Throughout the debate on this
legislation, we have been concerned about its complexities and about
whether people outside this place will understand everything that it
entails. I must say that I found the paperwork incredibly confusing
when I read it this afternoon. We are switching from the IBB to the
ISA. Will the Minister clarify that? It seems to me that, at this
stage, it would have been better to have firmed-up the name so that
everyone is sure what we are talking about. The explanatory notes refer
to the ISA, but the legislation refers to the IBB. How we can expect
the general public to understand the processes that are being
introduced when the name keeps being switched? That is my first point,
because the confusion of the switch between the two names really came
home to
me.

I
also want to touch on the communication strategy. There is no doubt
about itthere is an incredible amount of misinformation in the
real world about the legislation. I have had approaches from business
people, for example, who tell me that they do not want to take people
on work experience because their employees will have to be checked.
Although we have got the communication strategy at one level, it is not
filtering down to where it really matters. That will have an adverse
effect on, for example, young people being offered work experience,
because people will see it as complicated and
costly.

Like
me, the hon. Member for Basingstoke recalls that we discussed the issue
of foreign workers at great length in the Committee that considered the
2006 Act. Remarkably, some of the points that we made in those debates
were picked up in regulations introduced in 2007. It is almost as if
there is a time lag and new

Column number: 10

measures are being introduced later. Any measure is welcome, because it
has to improve the situation. However, we do not seem to be anywhere
near a foolproof system. While we do not have such a system, it is
absolutely vital that there is clear guidance to all concerned on the
sort of questions that they should ask when they employ
somebody.

My
understanding is that when somebody seeks a CRB reference on an
individual, the CRB gives information primarily from this country.
Unless a secondary question, Have you worked abroad at
all? is asked, no one will have a clue that something needs to
be followed through. The measure will obviously provide the CRB with
more information on some people, but some people will still not be
picked up. It is vital that employers ask that question, because there
are ways in which to gather information directly from the countries in
which people have been working. I came across an example where local
authorities were accepting CRB references on people and transferring
them, but they were not necessarily asking whether those people had
worked
abroad.